J.Sahai, J. - (1.) Appeal No. 1394 of 1955 has been filed by Vijaipal and Babu Lal while appeal No. 1529 of 1955 has been filed by Chandan and Prabhu. all four of whom have been convicted under Sections 399 and 402, I. P. C., by the learned Assistant Sessions Judge, Aligarh. Chandan has also been convicted under Section 19 (f) of the Arms Act. Whereas the sentences under Sections 399 and 402, I. P. C., of all the appellants have been ordered to run concurrently, the sentence under Section 19 (f) of the Arms Act imposed on Chandan has been ordered to run consecutively. Along with these four persons Chiranji son of Megh Singh, Chiranfi son of Maharam, Khushali, Mahabir, Balbir and Ram Gopal were also convicted by the learned Assistant Sessions Judge. These persons, as also the four appellants had filed one jail appeal against their conviction and sentence. This jail appeal was admitted by my brother V. D. Bhargava, J., on 21-11-1955. After the jail appeal had been filed and admitted the present two appeals Nos. 1394 and 1529 of 1955 were filed in this Court. By a mistake of the office no endorsement was made on the memorandum of these two appeals to the effect that a jail appeal had also been filed, with the result that these represented appeals also were admitted. On 19-7-1957, the jail appeal was listed before me. The two represented appeals mentioned above were not listed that day with the result that I disposed of the jail appeal with the help of the State counsel but without having the assistance of the learned Counsel appearing in the represented appeals, because their names were not printed in the cause list. I dismissed the jail appeal with this modification that I ordered that that the sentence passed under the Arms Act would also run concurrently and not consecutively with the sentences awarded under Sections 399 and 402, I. P. C. After some time the office realised its mistake and listed the two represented appeals before me and now I have had the benefit of hearing Mr. Kedar Nath Sinha in appeal No. 1529 of 1955 and Mr. J. N. Agarwal in appeal No. 1394 of 1955.
(2.) The first question that arises for consideration in this case is whether it is possible in view of the provisions of Sections 369 and 430 of the Code of Criminal Procedure to rehear these two represented appeals. In my opinion it is possible to do so. I have got ample powers under the provisions of Section 561-A, Cr. P. C. to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The said Section runs as follows : "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is a well established principle of justice that an act of the Court shall not prejudice any party. It cannot be denied that because of the mistake of the office of the Court the appellants have been deprived of the right of being heard through a counsel. This right has been guaranteed to them by Section 340 (1) of the Code of Criminal Procedure which runs as follows : "Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader." There is ample authority for the proposition that the hearing of an appeal would also be included in the word "proceedings" as contemplated by Section 340 (1), Cr. P. C. Therefore it has got to be held that by a mistake of the office of this Court the appellants have lost a very valuable right of being heard through their counsel. Under these circumstances I think I should invoke my powers conferred by Section 561-A, Cr. P. C.
(3.) I am of the opinion that Section 369, Cr. P. C., would be no bar to the exercise of my powers under Section 561-A nor do I think would the provisions of Section 430 be a bar. Section 369, Cr. P.. C., runs as follows : "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such. High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." In the first place the expression "save as otherwise provided by this Code" clearly means that the provisions of Section 561-A, Cr. P. C. are not affected by Section 369, Cr. P. C., and secondly when I give the appellants a rehearing and ignore my judgment dated 19-7-1957, I am neither altering nor reviewing that judgment of mine. Therefore the course that I propose to take would not fall within the mischief of Section 369, Cr. P. C. Similarly the bar of Section 430, Cr. P, C. would not stand in my way because an order which has been passed due to the mistake of the court itself in complete disregard of the statutory rights of the parties is an order to which no finality can be attached. In the view that I am taking I am supported by a decision of this Court in the case of Chandrika v. Rex, AIR 1949 All 176. In that case Chandrika had filed a criminal appeal through a counsel in which 5-7-1948 was fixed for hearing but by a mistake of the High Court office the case was listed for hearing earlier and was heard and disposed of on 25-6-1948, ten days before the date fixed for hearing, with the result that the learned Counsel appearing for the appellant in that case could not address the Court. Seth, J., acting under Section 561-A, Cr. P. C., set aside his earlier order dated 25-6-1948 dismissing the appeal and directed rehearing of the appeal A Division Bench of this Court has also taken a similar view in the case of Sriram v. Emperor, AIR 1948 All 106. In that case an order was passed by a Division Bench ignoring a certain provision of law. Though the order had apparently become final under Section 430, Cr. P. C. and though it was contended that it could not be altered or reviewed under Section 369, Cr. P. C., a Bench of this Court took the view that they could under Section 561-A, Cr. P. C., pass such orders in the interests of justice and, setting aside the earlier proceedings, passed a fresh order.;